The Execution of a Guilty Man:

A fascinating story in yesterday's Washington Post magazine about the execution of convicted murdered Roger Coleman. Coleman was executed in 1992 when I was in law school at UVA and I vividly remember the great controversy surrounding it, and especially this Time Magazine cover story suggesting that an innocent man was about to be executed.

As the Washington Post story recounts, some of those who opposed Coleman's execution kept pushing until last year a DNA test of semen found on the victim was conducted which confirmed that Coleman was in fact guilty. The hook for the Post's story is summarized in one caption, "Even after Roger Coleman's execution, his advocates didn't stop believing in his innocence. The question is why."

JohnO (mail):
I read that article yesterday and found it very interesting. Lots of criticism of Arnold &Porter in there. Sometimes lawyers forget that there are limits on what you can say in trying to defend a client. Unsupported accusations can affect third parties greatly, and sometimes we lawyers forget that in the course of vigorously representing our own clients' interests.
5.15.2006 4:46pm
The Post hook doesn't make any sense to me. Why would his execution be a reason to stop believing he was innocent?

I vaguely recall once reading a study that found that people are more likely to judge other people negatively if they're "punished," even if the punishments are handed out arbitrarily. This hook reads like an instance of that dangerous logic.
5.15.2006 4:49pm
JohnO (mail):

It's not an artful sentence by any means. But I think the point is that by the time of Coleman's execution the defense had gotten results from its own DNA expert that seriously undermined Coleman's claim of innocence (and undermined a claim that the supposed "real killer" was in fact guilty). The Post's hook suggests a cause and effect between execution and belief of guilt, when I think what they really mean to say is that by the time of execution there was a lot of evidence out there to suggest that Coleman was in fact guilty.
5.15.2006 5:12pm
The real question is why they continued believing his innocence after the 1st DNA test, not after the execution. SLS1L, I'd bet the post did make sense at first but got edited into something more dramatic but less sensible.
5.15.2006 5:12pm
Mike BUSL07 (mail) (www):
Behan, and whoever else argued that "the real killer" was indeed, the *real killer*, after it became apparent that the man had the wrong blood-type, should have been seriously disciplined. You hate hearing stuff like that - it's just embarassing.
5.15.2006 5:20pm
DK and JohnO - I agree that a different phrasing would have made it unobjectionable. Still, I find it troubling that the Post (and Zwicki?) seem to be endorsing the idea that execution is independent evidence of guilt.
5.15.2006 5:23pm
Rational Actor (mail):
The answer is pretty simple. Most people, once they adopt a belief, are extremely reluctant to give up that belief in spite of factual evidence to the contrary.
5.15.2006 5:24pm
RA - absolutely. See political discussions about virtually anything. People pick a side, then conclude that the evidence supports their side.

If the thing you conclude the evidence supports is always the thing you want to believe anyway, you're probably not being guided by the evidence. This is most people, me not excluded.
5.15.2006 5:41pm
Richard Aubrey (mail):
How 'bout this?

The folks opposing the death penalty need an innocent man to be executed. They don't have one, so they pretend with Coleman. They are aware that the facts that he was actually guilty aren't going to get much play while they lie about it in their presentations.

They don't believe he's innocent. They need others to believe he's innocent.
5.15.2006 5:57pm
The attorney (Behan) was young when she took on the case, and had not practiced criminal law and therefore had not experienced having a client lie to her and then discovering that the client had lied to her. So, she made the rookie's mistake of believing her client, and made this case into a "cause." The investigator, McCloskey, apparently, was taken in by Coleman who, although not especially educated, must have been pretty smart.

One thing I have learned is that, as an attorney, you constantly must be on the lookout for facts that suggest your client is lying. It happens all of the time, and not just in criminal cases. Once, in a civil case, I sat through a deposition and heard a witness (a "big wig" executive of the client corporation we were representing) recite a new version of events on something about which we had interviewed the witness repeatedly. I didn't "know" the witness was lying, but it was troubling, nonetheless (and I didn't use the testimony in the case later). While working for the government as an attorney on fraud investigations, I frequently deposed witnesses and obtained admissions of particularly damning facts and noticed that their attorneys appeared to be very surprised by these facts. So, I now put in my engagement letters a clause that permits me to withdraw if the client lies to me. While I oppose the death penalty as a matter of social policy, life is too short to represent people like Coleman.

I agree with the criticisms of the "hook" for the Post story: an execution isn't evidence of guilt, only that someone has been found guilty. The sentence is probably the result of sloppy editing.
5.15.2006 5:57pm
Rational Actor (mail):
You know, I am going to change my mind on this one. Richard Aubrey hit the nail on the head:

"he's innocent"
5.15.2006 6:12pm
Marcus1 (mail) (www):
Just to be contrary, I think the art of the sentence is in its ambiguity, not specifying at what point they should have stopped believing. Everything isn't intended as a logical argument...

The answer, I think, is a desire for individual cases to conform with our broader theories. If I believe the death penalty is wrong, and I believe it results in the deaths of many innocent people, I'm going to want very much to find cases that prove this. If Coleman gets proven innocent, it's a trajedy for him, but maybe something good can come out of it.

Plus, just getting to know someone, you probably don't want to think they're a murderer. I suppose liberals such as myself would think that this kind of faith in fellow man is a good thing, while conservatives might view it as an invitation to exploitation.
5.15.2006 6:20pm
Marcus1 (mail) (www):
Ok, so Richard Aubrey said it first, at least from the cynical standpoint. I disagree that they're not genuine, though. The fact that maybe they should know better doesn't mean that they do know better.
5.15.2006 6:27pm
Houston Lawyer:
Our minds are wired in such a way that we tend to see what we want or expect to see. Hence, the ink blot tests. It is very difficult to view death penalty issues dispassionately.

Remember, the only death row inmate who had his sentence commuted by Governor George Bush was Henry Lee Lucas, a known multiple killer. Lucas appears to be innocent of the murder for which he was sent to death row, but there would have been little hue and cry if he had been executed anyway. The commutation of his sentence was a statement of principle that justice must not be biased by emotion.
5.15.2006 6:31pm
Richard: "The folks opposing the death penalty need an innocent man to be executed."

I might sharpen the statement by saying opponents of the death penalty need to be able to prove that an innocent man has been executed. Most people who seriously follow the issue agree that it is quite likely that an innocent person has been executed in this country, given the numbers of death row inmates who have been exonerated.
Agreeing on this doesn't mean one must immediately abandon support for the death penalty--I'm sure there are arguments that one innocent life is an acceptable price to pay for all the assorted benefits the death penalty provides.
If you want to follow the issue as it develops, see what the Larry Griffin investigation turns up. (I'm not insisting Larry Griffin was innocent, since I wasn't there, but it's starting to look like it).
5.15.2006 6:41pm
Marcus1 - that's why this kind of thing is so dangerous. Rhetoric is all about implying a thing without saying it, so everybody knows what you mean but you can claim it's not what you meant.
5.15.2006 6:45pm
D.C. lawyer - you'd have to be a fool to think that nobody innocent has ever been executed in this country. Remember that America was an overtly racist apartheid state, or worse, for most of its history.
5.15.2006 6:47pm
Splunge (mail):
The most admirable figure in the story is McCloskey, the would-be priest, who when confronted with the facts adjusted his outlook, admitted Coleman was guilty and had led him down the primrose path, and started to ask how he'd helped delude himself. The least admirable figure is the lawyer, who when confronted with the same facts merely held onto her delusion with increasing strength.

I think the lesson is not that "everybody" sees only the evidence that conforms to their preferred point of view. That's only true of some people (such as the lawyer), and, even if one were to be totally curmudgeonly, perhaps most people. I think the valuable contribution of this story is that at least some people -- e.g. McCloskey -- will adjust their beliefs to match reality, when reality is definite enough, no matter how painful that adjustment might be. There are honest men. That's worth knowing, if only to put the fork to the ghastly post-modernist deceit that truth is merely a matter of perspective.

I'm sorry McCloskey removed Coleman's story from their website and his office. That story should have stayed up, with corrections, because the fact that McCloskey realized his error and responded rationally to it (unlike the lawyer and her firm) is a badge of honor. We all make mistakes. What separates us into men of honor and pathetic wretches is how we respond when we discover our mistakes.
5.15.2006 6:54pm

Sure, I think most people would agree with that. But the question of more significance is whether a post-Furman scheme has produced one or more false convictions that have resulted in the execution of an innocent person.
5.15.2006 6:58pm
EJO (mail):
it still doesn't strike one as ethical lawyering, no matter the age or experience of the lawyer. in the role of crusading lawyer, are you allowed to lie? to make public statements in contradiction of the facts, knowing that, as a member of a big time law firm, nothing will touch you? when you start from this point, proudly displaying the credential of obtaining a pardon for Marc Rich isn't a real leap.
5.15.2006 6:59pm

Most people who seriously follow the issue agree that it is quite likely that an innocent person has been executed in this country, given the numbers of death row inmates who have been exonerated.

Given the 100-plus who have been exonerated for having been innocent, isn't it quite likely that hundreds of innocent people have been executed or are awaiting execution? Surely we don't catch 99% of our errors.
5.15.2006 7:34pm
An addendum: Is there any reason to suppose that we catch 1/2, or 1/4, or 1/10 of the errors? If we did away with capital punishment, then the groups that work to discover which death-row inmates are innocent could devote their time to discovering which of those sentenced to life imprisonment are innocent. Some of them might have pled guilty to avoid the threat of the death penalty. As a commenter at wrote recently, how can we possibly accept guilty pleas from people to whose head we are pointing guns (or lethal injections)?
5.15.2006 7:47pm
TLove (mail):
With the rapid improvement in dna analysis in particular, and forensics in general, the liklihood of an innocent being executed is dropping.

The search for the innocent executed man will become an archeological exercise only.
5.15.2006 8:21pm
Don't forget that there is no DNA evidence in many cases, such as when the murderer shoots from a distance.
5.15.2006 8:24pm
JunkYardLawDog (mail):

As a commenter at wrote recently, how can we possibly accept guilty pleas from people to whose head we are pointing guns (or lethal injections)?

An interesting conundrum. One solution would be to make them all plead innocent and take their chances on the death penalty at trial. No more Sophie's Choice at that point. Stop letting death penalty candidates off with Life. Try 'em and fry 'em.

Says the "Dog"
5.15.2006 8:27pm
A. Zarkov (mail):
I think we have a strong case of hubris here. Coleman's attorneys obviously felt that they knew better than the trial court—particularly a trial court from rural Virginia. All too often the young urban graduates of elite colleges and law schools have contempt for the common folk, especially the common folk who inhabit southern states that go for George Bush. You would think the Coleman's lack of interest in DNA test would arouse their suspicions. After all if innocent, what did he have to lose? Yes the police might temper with the evidence, but that's not a certainty, so he has everything to gain. Unless he us guilty. These lawyers should have been disbarred for their outrageous behavior in trying to blame another person.
5.15.2006 9:09pm
Richard Aubrey (mail):
DClawer. As I said, the original foofaraw about Coleman's innocence plus lying about the facts in the future will "prove" his innocence for partisan purposes. The real facts are in a boring file someplace.
5.15.2006 9:38pm
T. Gracchus (mail):
The defense lawyer continued to advance the innocence of her client for reaosns quite like those which lead prosecutor to continue to advance the guilt of defendants who have been (a) acquitted and/or (b) exonerated by DNA evidence. Some folks do not much care about the facts after a while. Suggestions that the attorney be disciplined are not to be taken seriously; at least, not until there is some regularity to punishing prosecutors for similar conduct.
5.15.2006 10:40pm
I think some of the commentators here are making the mistake of thinking that people who have been "exonerated" are innocent. The overwhelming majority of those who have been "exonerated" were guilty of their crime.

I had the opportunity to see one of these "exonerated" people speak at my law school this year: I would have no problem with pulling the switch on him. I am absolutely convinced that he is a killer, that he did the crime, and that it is immoral to let him live. And yet, the "Innocence Project", a play thing of rich white liberals, was able to raise some minor question about procedure years later, and find a hard-left trial judge to reopen the case.
5.15.2006 10:43pm
Rational Actor (mail):
BarryG wrote:

The overwhelming majority of those who have been "exonerated" were guilty of their crime.

Where does one go to find the statistics that support that statement?
5.15.2006 10:54pm
Rational Actor:
"Where does one go to find the statistic that support that statement?"

Here are a few arguments. First, given that in the American system to be convicted and sentenced to death you need to: (1) become a subject of interest to the police; (2) be deemed to be probably responsible; (3) have a politically and professionally responsible D.A. decide that it is worth it to prosecute you; (4) have enough evidence developed against you to go to trial; (5) be represented to the hilt throughout the entire pretrial proceedings; (6) have a trial with incredibly unfair one way ratchets (e.g., the trial court and the prosecutor will bend over to ensure that the suspect is given his rights, the fifth amendment doesn't allow in certain statements, the fourth amendment won't allow in certain evidence); (7) subject to an incredibly high burden of proof (proof beyond a reasonable doubt); (8) judged by a jury of strangers (in contrast with the historic role of the jury in England, where the jury was supposed to be people in the community who knew the witnesses and the suspect so they can judge their worthiness and truthfulness); (9) require unaminity or near-unaminity of guilt; (10) require unaminity or near-unaminity of death suggestion by jury; (11) have a judge also agree to the conviction; (12) have appeals through the state system; (13) have appeals in the federal system via habeas; and (14) have a right to petition the Supreme Court.

All told, there needs to be hundreds of people: professionals and laymen, politicians and civil servants, life-appointees and elected judges, men and women. After all that every single unanimously realized he was guilty.

You think some punk rich white boy looking at a cold file 20 years later is going to arrive at a better conclusion?
5.15.2006 11:04pm
Second, look at the best cases. Coleman wasn't a one-off. This was the signal case for the exonerators. This is the peg they were going to hang their hat on. This was it! And yet, he was guilty. Guilty as sin.

So if their "best case" was wrong, its reasonable to assume most of their other "exonerations" were crap.
5.15.2006 11:06pm
Third, in terms of statistics. There is an endless amount of money available to investigate "innocence". The left-wing New York Times has billions of dollars. The Democratic Party (locally) can dictate the judges (at least in New York). The hard left academy completely supports this. And yet, there has never been found to be an innocent man killed. Never.

(also, I forget the name, but there was an exoneree earlier this year who got out and immediately killed "again". hmmmm. . .

Also, to be clear, there are negative results from these exonerations. First, killers are allowed to live. Second, the killers are more likely to kill "again" than normal people. Third, it makes "the people" believe the justice system is a crock. Fourth, it dirties the soul of the dupes who invest their time and money in exonerating these guilty people. )
5.15.2006 11:11pm
Rational Actor (mail):
So its anecdotal evidence, not statistical. Are you suggesting that there haven't been any, or many, wrongful convictions?
5.15.2006 11:14pm
Rational Actor (mail):
BarryG -
are your statistics better than your financial analysis? As of 3/31, the New York Times had about $40mm of cash. Their operating profit is running at about $264mm on a run-rate basis, but they have substantial debt service to handle; net income was $35mm for the first quarter, suggesting annualized net income of $140mm.
So, unless you know something they are not disclosing in their SEC filings, they don't actually have billions to spend.
5.15.2006 11:21pm
What do you mean by "wrongful conviction". Lawyer People aren't perfect. I am sure that many people sitting in jail today were not put there via proceedings with a perfectly preserved record. If we had all the time in the world, we could pick apart and appeal to death (no pun intended) based on the record. But is that a Wrongful Conviction? No way.

To me, a wrongful conviction would be the rare, rare, rare case. . . Where the police acted wrongly and just picked up the first person they saw. The D.A. cooperated in the sham. The Defense Attorney was in on it too. The Judge through caution to the wind and also decided to pick on the innocent man. The jury were all paid off. The appeals courts weren't paying attention. The Article III habeas court judge was also in on the scam.

Come on, you think that happens frequently? Or that in the cases where there is a flaw in the record, or racism, or a fourth amendment violation, or a fifth amendment record that the person was "wrongfully convicted".
5.15.2006 11:22pm
Rational Actor. I'm not familiar with the financial strength of the New York Times. I can tell you that Bill Keller can get up in the middle of night and decide he wants to crusade for the wrongfully convicted. The next week, there would be front page stories about it. Before you know it, 60 Minutes, and the newsmagazines would follow along.

In contrast, let's say a monarchist or other genuine conservative awoke one night and decided they want to investigate the wrongful exoneration of the guilty. What power would they have? The left controls the levers of media and power in this contry, what chance would they have to investigate it?
5.15.2006 11:26pm
Rational Actor (mail):
BarryG -
I don't think it happens frequently, but I think that it happens. I don't have any idea what the statistics are, and I don't claim to be an expert in this area. But, i don't think it has to be as grand a scheme as you suggest. I don't know how much experience you have outside of school, but in the real world, people get overcommitted, lawyers have too much to do on too many cases, and things slip through the cracks, malice or not. Given that eyewitness testimony is both (i) highly unreliable and (ii) viewed by jurors as extremely persuasive, I believe that there is quite a bit of room for error. I have sat on two juries in my life; one out of two got the right answer.
5.15.2006 11:29pm
Aubrey ===========You have got it exactly right. They need a martyer to their cause. Free MUMA is getting them nowhere. They do not understand the pain they cause his wife over that continuing stunt. Maybe they do and just don't care.
5.15.2006 11:32pm
Rational Actor (mail):
BarryG -
If I were a conservative with a news story I wanted to get out, I imagine that Rupert Murdoch would be a pretty good first call. The second call would be to my neighbor down the street who books guests for Glenn Beck's show on CNN. After Fox and CNN, hmmm, I just don't know.
5.15.2006 11:33pm
Richard Aubrey (mail):
Howell Raines decided that having women as members of some country club down south was worth flooding the zone.

What would happen if the whim were really serious?
5.15.2006 11:34pm
A. Zarkov (mail):
How many people have been executed by the states and the feds in the whole history of the US government? I'm going to guess 10,000. How many women? I'm going to guess 50. Does anyone have any real data?
5.16.2006 12:18am
What do you mean by executed? Killed lawfully? That would include those killed by the police during the course of the police's duty. I'm sure that's far higher than 10K.
5.16.2006 12:35am
American Psikhushka (mail) (www):
Evidence viewed as iron-clad is an iron-clad way to frame someone. All other forms of evidence have been tampered with at some point, it will happen with DNA - it probably already has.

And certain groups have a history of planting evidence on enemies, and a history of using legal fraud to bring about false convictions.

So in the end DNA is strong evidence, but it isn't a certainty.
5.16.2006 3:12am

In your 10:04pm post you had a list of 14 items. Yes, the system's set up to make it not so easy to convict people - good. A few comments:

Item (3): The "politically ... responsible" DA counts against the defendant, not for, at least here in Texas.

Item (6): Some of the "ratchets" you describe aren't one way at all. There are plenty of cases in which defense statements and/or evidence are excluded.

Item (7): The level of proof is in principle quite high, as you say. However, I'd bet if you required jurors to write a brief paragraph telling how "clear and convincing" is different from "beyond a reasonable doubt", you would get ~50% correctly guessing was which was stricter, but less than 10% able to give any articulate reason for their answer.

Item (8): The jury of strangers counts in favor of a habitual wrongdoer known to the community, but it counts against a wrongly caught person of good reputation.

Item (9): True, and thank god.

Item (11): True, but reduced in effectiveness in some places by the same considerations that apply to item (3).

Items (13 &14): (a) The feds aren't supposed to retry the facts. These levels of review only ensure that items (1-12) were carried out. (b) The right to submit a petition is only that - the vast majority I believe are (correctly) denied.
5.16.2006 3:30am
Harry Eagar (mail):
It is immoral, in my view, to let the homicide prone keep on truckin'.

Therefore, at a minimum, that's an argument for SOME capital punishment.

If you're concerned about executing the wrong person (who wouldn't be?), then you could expand the range of evidence required. There are three broad kinds: witness, scientific, circumstantial.

We know, thanks to Professor Elizabeth Loftus, which kind is most likely to be invalid (witness). So it would be easy enough to slash the chances of getting a wrong capital conviction by requiring at least one of the other types of evidence along with witness to go to execution.

This strikes me as a reasonable approach. What is unreasonable is the allegedly moral stance against all death penalties.

This is easiest to see when the argument is framed: What if there is some doubt, how can you extract the ultimate?

But there are cases where there isn't the shadow of a doubt, and you NEVER hear the antis then say, 'Oh, OK, no chance of mistake here, kill 'im.'

Week's pay to anyone who can show Sister Prejean or any of those other faux moralists making THAT argument.
5.16.2006 3:47am
Public_Defender (mail):

With the rapid improvement in dna analysis in particular, and forensics in general, the liklihood of an innocent being executed is dropping.

The search for the innocent executed man will become an archeological exercise only.

But DNA evidence is the exception, rather than the rule. You can be put on death row without DNA. The least reliable form of evidence is the eyewitness ID. If the witness knows the defendant, your have to worry about a motive to lie. If the witness doesn't know the defendant, the witness will be far more confident in the ID than they should be. People greatly overestimate their ability to identify someone they saw only briefly.

As to believing your client, I take the view that it's my duty to give my clients the benefit of the doubt. That doesn't mean I accept everything hook, line and sinker. But I'll look at the available facts and see if my client's version is plausible. If that means there's a plausible argument that someone else did it, I will make that argument. However, unlike the Arnold and Porter lawyers, I would make the allegation only in court arguments and pleadings, where they are privileged.

And as a PD, I'm the safety net. These guys are entitled to counsel, even if they raped and murdered someone. As to dropping clients who lie to me, what am I supposed to say, "yeah, I know you murdered three people, that I could forgive and still work for you, but then you lied to me, and that's unforgivable"?

As to the first DNA test in the Coleman, there was at least a plausible argument that it was not done properly. DNA evidence is only as good as the collection and analysis technques. The State must also have feared the results because they probably spent more money fighting against the second test than if they would have just done it.

As to theories as to why the DNA could have been someone other than the named "real killer," you'd be surprised at how creative prosecutors are in explaining how a defendant is still guilty even though DNA not belonging to him ended up in a dead woman's vagina.
5.16.2006 8:57am

As far as the vast majority of the "exonerated" being guilty of their crimes, doesn't that depend on how you define "exonerated?" Check out this study: (See the second paragraph of the second page for the authors' definition of "exoneration").

Zarkov asked: How many people have been executed by the states and the feds in the whole history of the US government?

1022 since 1976. (The number since 1789 is probably quite a bit larger, but most death penalty opponents focus on post-Gregg executions).
This is a reliable number. The Death Penalty Information Center is generally viewed as reliable by all sides of the capital punishment debate. Advocacy certainly creeps into their positions on some issues (e.g., those they consider "executed despite doubts about guilt." And their definition of "innocent" is somewhat broader than the defintion of "exonerated" in the study cited above, but it's undisputable that the vast majority of the 123 people they list as "innocent" were not involved in the crime for which they were sentenced to death.
5.16.2006 9:38am
Freder Frederson (mail):
The problem with the death penalty as it is applied in the vast majority of jurisdictions in this country is that is primarily sought against poor, mostly minority, defendants with inadequate counsel. And if they kill a white person the odds of the prosecution seeking the death penalty are even greater.

Those states that are scrupulous about providing adequate defense counsel to capital cases have very few people on death row. I lived in Kansas, and they rarely brought capital cases, and only in the most heinous cases. They had a special team of state appointed public defenders available to defend capital cases. As a result, their death chamber was rarely used. If the death penalty is going to be applied it should only be reserved for the worst of the worst, and not just because someone is poor or they murdered a good looking white woman.
5.16.2006 12:18pm
DCLawyer, I think the UMICH article you pointed out just proves the point. The majority of the cases were hard-left Democrats who believe that it is immoral to put people to death for their crimes, so they commuted their sentences. That doesn't prove innocence. It doesn't prove anything.

It also is another illustration of the one-way ratchet. A governor couldn't get elected and retroactively say: every person convicted of a violent felony will now be put to death. And yet, a governor could get elected and retroactively say: every killer convicted and sentenced to death will now have their punishment commuted. It just goes to show that it is extremely hard to put the guilty to death (a situation that I believe is extremely immoral), and it is virtually impossible (I am tempted to say absolutely impossible) for an innocent man to be put to death by the government via the criminal process in America today.
5.16.2006 1:05pm
Rational Actor (mail):

it is extremely hard to put the guilty to death (a situation that I believe is extremely immoral),

Are you saying that a criminal justice system that does not incorporate the death sentence is extremely immoral?
5.16.2006 1:17pm

The majority of the cases were hard-left Democrats who believe that it is immoral to put people to death for their crimes, so they commuted their sentences.

The paragraph to which I referred states that 42 of the exonerations came from the governor's mansion, but none involved "commuting" a sentence. No case was counted unless the individual was released from prison because it was determined they were innocent. (In other words, it's simply not true that any of the "exonerations" came because a state's governor commuted sentences from death to some other sentence).

Furthermore, as the paragraph points out, 263 cases involved courts dismissing the charges on the basis of new evidence, and 31 involved acquittals at retrial. It's hard to add those numbers up and see how 42 makes a "majority."
5.16.2006 3:18pm
Harry Eagar (mail):

Kansas, that's got Wichita, right? Where the BTK killer wasn't heinous enough to get death?

How many more heinous crimes were there in Kansas?

I spent a number of years in Iowa, where a U of I prof (cannot recall his name) did studies supposedly proving a racial bias in executions.

His work was, to be polite, garbage.

First, you have to define the crime of interest. It should be homicide. If you use statistics about trials for murder, you miss a lot of incidents that need attention.

That's why I used the phrase 'homicide prone.' I've been a newspaper reporter for 40 years, and have crossed paths with a number of people dangerous to life. The most dangerous almost never get charged with murder. It's always manslaughter, for a variety of reasons that I won't take time to elaborate here.

But let's take the other end of the telescope: If you're going to compare racial (or class) crimes, you have to have some sort of standard population.

Now, Iowa doesn't have the death penalty, but it does have homicides. During the exact period when the U of I prof was using inadequate data to reach conclusions, we ran a sort of experiment: To my way of thinking, among the most heinous crimes are home invasions that result in homicide. These bother me more than, say, two dice shooters killing each other because one accused the other of cheating.

In my 9 years in Iowa, we had 4 incidents of home invasion that resulted in death of the householder. Not a huge sample, but adequate.

One was a white on white crime, three were black on white (all three closely related, same neighborhood and same actors).

Consider, if you did execute for that sort of crime, and fed those into a data base, what would come out would be three times as many executions of blacks for murdering whites as for whites murdering whites, and no incidents of whites executed for murdering blacks.

Problems with death penalty cases? You bet. But not the problems that are being presented in what passes for the national debate.
5.16.2006 4:55pm
Rational Actor (mail):
Harry Eager writes

Consider, if you did execute for that sort of crime, and fed those into a data base, what would come out would be three times as many executions of blacks for murdering whites as for whites murdering whites, and no incidents of whites executed for murdering blacks.

I can't comment on the validity of the specific study undertaken by the U of I Professor, but I can say that any results of your hypothetical study would be cast in terms that "a black murdering a white is as likely to be sentenced to death as is a white murdering a white."
5.16.2006 5:12pm
Richard Aubrey (mail):
Rational. No. That would be the logical conclusion. But not the partisan take.
The logical conclusion won't get much ink.
5.16.2006 5:30pm
Christopher Cooke:
First, as to whether the death penalty is administered in a racially neutral way, there have been many studies showing racial bias in the administration of the death penalty, mainly indicating a much higher rate of death sentences imposed when the victim was white and the defendant was black than in other contexts (e.g., white defendant, black victim). The ACLU summarizes several of these studies:

I have never seen a convincing refutation of these studies' apparent findings of racial bias, but maybe there are other studies showing no such bias.

Yet, several years ago, the Supreme Court rejected an equal protection challenge based upon such statistical studies in a Georgia case. See McClesky v. Kemp. Ironically, such "disproportionate impact" studies are an accepted means of proving racial discrimination in jobs cases.

In terms of the article, the lawyer did come across much worse than the investigator, McCloskey. He admitted when he was wrong, whereas the lawyer clung to her belief despite the evidence (much like people clinging to the "no racial bias" view, perhaps). Both should not have accused anyone else of having committed the crime at a news conference or anywhere outside of their court filings. That is wrong.

I agree with, and applaud Public Defender for, taking cases even though his/her clients may lie to him/her. Those types of clients have to be represented by someone for our system of justice to work and certainly a lie to an attorney may pale in comparison to the crimes with which the client is charged.

However, as a lawyer in private and civil litigation practice, I have a greater freedom of being able to say no to clients when I choose to do so. If a client can't trust me enough to tell me the truth, the client makes my job much harder to do. So, I agree with the previous poster and think it appropriate for an attorney to reserve the right to withdraw if he or she finds out that a client has been lying to him/her. I wouldn't automatically do so, and may not do so, it would just depend on the circumstances.
5.16.2006 6:06pm
Rational Actor:

Alas, I am middle of exams and cannot fully participate in this conversation but just to be clear, when you asked:

Are you saying that a criminal justice system that does not incorporate the death sentence is extremely immoral?

Yes. A criminal justice that does not incorporate the death sentence [for violent felonies and murder] is extremely immoral. I would also note that it is extremely rare. In most of the world, the death penalty is widely meted out. For example, in Iran, the death penalty is commonly imposed for homosexuality (yes, Justice Kennedy, even for homosexual juveniles). In France the government has functionally ratified (by not aggressively prosecuting) the death penalty for muslims who marry out of the faith. (What leftists proudly call "honor killings"). Unlike France and Iran (just to use two examples) the United States does not have the death penalty for crimes of sexual immorality. (They would probably be held unconstitutional under the 8th Amendment and Lawrence). But again, America is unusual in this regard.
5.16.2006 6:58pm
Harry Eagar (mail):
Christopher, you miss my point.

An analysis of completed murder trials is not the data base you need to use to determine who gets charged with what and how.

Like I said, I've been a newspaperman for a long time. There are a lot of reasons why homicides don't get treated as murders. In the South, where I did my early work, there was an unquestionable (though I cannot quantify it) tendency of the courts and prosecutors and police to treat black-on-black homicides, especially domestics, as manslaughter (or even no crime at all) than same circumstances white-on-white.

The first one I covered involved a 14-year-old boy who shotgunned his daddy, who was chasing his mom around the house. 'I'd have done the same,' the sheriff told me. Case closed. The investigation couldn't have taken more than 20 minutes.

I could cite further examples.
5.16.2006 8:57pm
Rational Actor (mail):
Barry G:
I can't attest to the accuracy of Wikipedia, but it suggests that 86 countries around the world, including most of Europe, Canada and Mexico, have completely abolished the death penalty. Another 25, though retaining it, have not used it for at least 10 years. If it is anything close to accurate, I am not sure how you get to "extremely rare." What is your information source?
5.16.2006 9:35pm
Rational Actor:

With all due respect, your numbers on the death penalty are pure BS.

Here's a report from the AP on May 16th: /ap_on_re_la_am_ca/brazil_violence

The story is about how the local police in a Brazilian town executed 33 gang members. No judge, no jury: executed. Internationalists can jump up all they want and talk about peace and justice and how country X doesn't have the death penalty. But its a filthy lie. Even in those countries "without the death penalty" the death penalty is widespread.

The differences is that in the US, there is habeas in the federal system. In other countries the central government has no control over what's going on in the local courts, let alone local police department. Imagine if the US abolished the death penalty and Mayor Boomberg in New York City said, okay, I want 33 gang members prosecuted under a death penalty in the New York State system. Now imagine he said, you know that state system with its pesky procedures, I'll just assasinate them on the street. Then imagine that back in Brazil people were arguing for the moral superiority of America because it doesn't have the death penalty. That would be a joke, wouldn't it. That's exactly the situation here, the death penalty is widespread everywhere (except former British territories and Western Europe) and fantasist here in America act as if it were abolished.

An anecdote. I have a Colombian friend who described why she went north. The leftist local government was concerned that the teachers weren't sufficiently loyal. So every week they would have the teachers line up in the courtyard and shoot one. Stuff like that hardly makes the local news in Colombia. - A country without the death penalty)

So basically it is a lie. With the temporary and tiny exeptions of a few territories formerly of the British Empire, and a few states in Western Europe the death penalty is universal. The death penalty for children is also virtually universal.

You seem like a bright guy, why would you believe this propoganda about how in other countries they dont' have the death penalty? The poor and immoral third world should hardly be used as an example.

[To be clear, the third world is not immoral because they are poor. But rather, the third world is poor because the third world is immoral. Just like in the United States. Immoral parents produce poor families. That's why an American child born to monogamous heterosexual parents that do not use drugs, booze or smoke, has virtually no chance of growing up in poverty.]
5.16.2006 11:13pm
Christopher Cooke:
First, to BarryG: you are not truly talking about the "death penalty" you are talking about murder, when you cite examples of summary executions by mobs outside of the court process, in support of your argument about the supposed prevalence of the death penalty. Why does it matter? I think it fair to judge countries on what they aspire to be, and those aspirations are reflected in their duly enacted legal systems, not in the base actions of the mob. I find it particularly ironic that you condemn the "immoral" third world, and yet cite the supposedly widespread practice of unlawful executions in the third world in support of your argument for why a moral system of justice must have a death penalty.

To Harry Eagar: I don't see how your example of bias in what gets charged as a murder refutes the notion that juries are handing out death sentences based, in part, on the racial characteristics of the accused and the victim. Your anecdote of the 14 year old being charged with manslaughter, rather than murder, could reflect bias on the part of the arresting officer, i.e., that the black victim's life isn't worth a murder charge. Or, of course, it could reflect the officer's perfectly legitimate view that the 14 year old boy was provoked by his father into attacking him, which could be manslaughter under the common law. See the following link for a definition of manslaughter:

FYI, the University of Iowa professor's study, to which you alluded in your prior post, is mentioned on the ACLU website link that I posted previously.
5.17.2006 12:00am
Christopher Cooke:

I appreciate your thoughts on the logical inconsisency of what I wrote. I am in middle of exams, and I'm just using these posts to blow off stream. That said: How far does your rule that we only judge countries by their "aspirations" go. Certainly the socialists who ruled Germany in the early 40s had good 'aspirations'. Didn't work out of course, but they meant well. In a more recent example: in the 80s and early 90s the left wing mayors of my adopted city (NY) let crime run rampant. The result was anarcy and bloodshed and thousands killed a year. Rudy Giuliani came into power and started a vicious campaign of violence and intimidation aimed against the poor and the criminal classes. The result was a much richer and safer city - especially for the poor classes. Whose 'aspirations' were better? Giuliani's or Koch's? Certainly the utopians meant better than the cold-hearted Guliani. But good aspirations didn't save the city.

Which raises another issue: why should we impose our legalistic mindset on the rest of the world. In the third world the local warlord serves as jury, judge and executioner and he a central part of the "system". It seems unfair to compare the American judicial system to only the [insert foreign name here] judicial system. The extra-judicial system of murder, mayhem, and racism that is prevalent out 'there' (i.e. territories never part of the British Empire and not in Western Europe) is just as much as part of the system as the courtroom is in the United States.

And one last issue: I want to be clear why it is important not to defend immoral and bad foreign countries for their "aspirations". The starting point of any discussion of the American system is a recognition is the moral inferiority of the way things are done outside our shores. Just as an example, when we realize how barbaric it is to throw someone out of the coutry who has been here for a few years without at least a hearing we can talk about what we should do. So for example, by recognizing that the immoral, xenophobic and frankly disgusting Mexican immigration system is bad, we can decide how we will do things here. What benefit is there in defending the bad ways they do things in the third world?
5.17.2006 12:26am
Harry Eagar (mail):
Christopher, I was thinking of global outcomes. It might be valid to say that juries decide cases differently based on race (though that's never been my impression as a jury watcher), although it's unlikely that all juries would tilt the same way. It's a big country.

But if some homicides never even enter the court system, perhaps for racial reasons, perhaps for some other sort of reason, and if you're trying to determine whether justice is served, just looking at the murder trials doesn't get you very far.


As far as aspirations of the populace of other countries go, that's the $64,000 question of the day, isn't it? It is sometimes said (with what accuracy I can't say) that the 1937 Constitution of the USSR was the 'most perfect' constitution ever written. Whether it reflected the aspirations of the Russians seems doubtful, though.
5.17.2006 3:51pm